Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB

Table of Contents

1. Introduction
2. Definition of vulnerable persons
3. Objectives
4. Procedural accommodations
5. General principles
6. Proceedings with more than one party
7. Early identification
8. Expert evidence
9. Scheduling
10. Questioning the vulnerable person
11. Decisions and reasons
12. Designated representative
13. Self-represented persons
14. Women fearing gender-related persecution
15. Minors
16. LGBTI individuals
17. References
18. Inquiries

1. Introduction

1.1 The intention of this guideline is to provide procedural accommodation(s) for individuals who are identified as vulnerable persons by the Immigration and Refugee Board of Canada (IRB). Chairperson's guidelines are issued to assist members in carrying out their duties as decision-makers under the Immigration and Refugee Protection Act (IRPA)^{Note 1} and to promote consistency, coherence and fairness in the treatment of cases at the IRB.

1.2 Appearing at an IRB hearing is a process that can be difficult because of language and cultural barriers and because of the fact that the outcome of the hearing is so significant for those involved. The IRB makes decisions on immigration and refugee matters, including admissibility, detention, removal, refugee protection, permanent resident status, and family reunification — all matters that directly and profoundly affect the lives of individuals.

1.3 The IRB's four divisions, the Immigration Division (ID), the Immigration Appeal Division (IAD), the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD), are committed to providing fair proceedings to all persons appearing before them in a manner that is guided and informed by the objectives set out in section 3 of the IRPA. This guideline is intended to apply to the four divisions of the IRB.

1.4 The IRB occasionally hears cases involving persons for whom a hearing or other case process is a particularly difficult experience because their ability to present their cases is severely impaired given a physical or psychological frailty or for other reasons. The vulnerability of these persons has always required special consideration, and over the years, the IRB has adopted case-by-case procedures to deal with their cases. This guideline articulates the IRB's continuing commitment to making procedural accommodations for such persons so that they are not disadvantaged in presenting their cases.

1.5 A person's vulnerability may be due to having experienced or witnessed torture or genocide or other forms of severe mistreatment; however, it may also be due to innate or acquired personal characteristics such as a physical or mental illness, or age. What vulnerable persons appearing before the IRB have in common is their severe difficulty in going through the hearing process or other IRB processes without special consideration being given to their individual situations. Like all persons appearing before the IRB, vulnerable persons need to be treated with sensitivity and respect, but they also need to have their cases processed taking into account their specific vulnerabilities.

2. Definition of vulnerable persons

2.1 For the purposes of this guideline, vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, women who have suffered gender-related persecution, and individuals who have been victims of persecution based on sexual orientation and gender identity.

2.2 The definition of vulnerable persons may apply to persons presenting a case before the IRB, namely, to refugee protection claimants (in the RPD), appellants (in the IAD and in the RAD), and persons concerned (in the ID). In certain circumstances, close family members of the vulnerable person who are also presenting their cases before the IRB may qualify as vulnerable persons because of the way in which they have been affected by their loved one's condition.

2.3 Persons who appear before the IRB frequently find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences that resulted in some degree of vulnerability.^{Note 2} IRB proceedings have been designed to recognize the very nature of the IRB's mandate, which inherently involves persons who may have some vulnerabilities. In all cases, the IRB takes steps to ensure the fairness of the proceedings. This guideline addresses difficulties that go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability.

2.4 Wherever it is reasonably possible, the vulnerability must be supported by independent credible evidence^{Note 3} filed with the IRB Registry.

3. Objectives

The objectives of this guideline are as follows:

3.1 To recognize that certain individuals face particular difficulties when they appear for their hearings or other IRB processes because their ability to present their cases is severely impaired.

3.2 To ensure that such vulnerable persons are identified and appropriate procedural accommodations are made.

3.3 To the extent possible, to prevent vulnerable persons from becoming traumatized or re-traumatized by the hearing process or another IRB process.

3.4 To ensure the ongoing sensitization of members and other hearing room participants to the impact of severe vulnerability.

4. Procedural accommodations

4.1 Depending on the nature of a person's vulnerability, they may face particular difficulties in presenting or addressing evidence that should be taken into account in determining the procedural accommodations to be made. Such difficulties may include the following:

1. a person's vulnerability may affect memory, behaviour and their ability to recount relevant events;
2. the vulnerable person may be suffering from symptoms that have an impact on the consistency and coherence of their testimony;
3. vulnerable persons who fear persons in a position of authority may associate those involved in the hearing process with the authorities they fear; and
4. a vulnerable person may be reluctant or unable to talk about their experiences.

4.2 The IRB has a broad discretion to tailor procedures to meet the particular needs of a vulnerable person, and, where appropriate and permitted by law, the IRB may accommodate a person's vulnerability by various means, including:

1. allowing the vulnerable person to provide evidence by videoconference or other means;
2. allowing a support person to participate in a hearing;
3. creating a more informal setting for a hearing;
4. varying the order of questioning;^{Note 4}
5. excluding non-parties from the hearing room;
6. providing a panel and interpreter of a particular gender;
7. explaining IRB processes to the vulnerable person; and
8. allowing any other procedural accommodations that may be reasonable in the circumstances.

5. General principles

5.1 A person may be identified as vulnerable, and procedural accommodations made, so that the person is not disadvantaged in the presentation of their case. The identification of vulnerability will usually be made at an early stage, before the IRB has considered all the evidence in the case and before an assessment of the person's credibility has been made.

5.2 A person may be identified as vulnerable based, in part, on alleged underlying facts that are also central to the ultimate determination of their case before the IRB. An identification of vulnerability does not indicate the IRB's acceptance of the alleged underlying facts. It is made for the purpose of procedural accommodation only. Thus, the identification of a person as vulnerable does not predispose a member to make a particular determination of the case on its merits. Rather, a determination of the merits of the case will be made on the basis of an assessment of all the evidence.

5.3 Similarly, evidence initially used to identify a vulnerable person and to make procedural accommodations may not have been tested through credibility assessments or other means. If such evidence is then used to adjudicate the merits of the case, the member should ensure that the parties are given an opportunity to address this evidence as it relates to the merits of the case. This means that submissions may be made about the relevance of the evidence, and the evidence may be tested through such means as questioning by the parties and the member, and other methods. The credibility and probative value of the evidence may then be assessed by the member, even though the IRB previously accepted the evidence, for the purpose of identifying vulnerability and making procedural accommodations.

6. Proceedings with more than one party

6.1 Some IRB hearings are adversarial in nature, and the rules of natural justice apply equally to both parties. Identification of vulnerable persons and procedural accommodations for vulnerable persons cannot have the effect of denying any party a fair opportunity to present their case. Where the Minister^{Note 5} is a party, the Minister's views will be sought on whether a person should be identified as a vulnerable person and, if so, on the nature of any procedural accommodations to be made, except for accommodations of an administrative or minor nature.

7. Early identification

7.1 A person can be identified as vulnerable at any stage of the proceedings. It is preferable to identify vulnerable persons at the earliest opportunity.

7.2 In the course of early review of the file, the IRB may find information disclosing that the ability of the person to present their case may be severely impaired. The IRB may initiate early contact with the person, the designated representative, counsel or any other person to gather evidence that is relevant to whether the individual should be identified as a vulnerable person and that is relevant to the types of procedural accommodations that might be made.

7.3 Counsel for a person who may be considered vulnerable is best placed to bring the vulnerability to the attention of the IRB, and is expected to do so as soon as possible. Others who are associated with the person or who have knowledge of facts indicating that the person may be vulnerable (counsel for the Minister or any other person) are encouraged to do the same. Wherever it is reasonably possible, independent credible evidence documenting the vulnerability must be filed with the IRB Registry.

7.4 Counsel for a person who wishes to be identified as a vulnerable person must make an application under the Rules of the Division.^{Note 6} The application must specify the nature of the vulnerability, the type of procedural accommodations sought and the rationale for the particular accommodations. The IRB will be sensitive to the barriers that may be created by the formal requirements related to making applications in the case of self-represented persons and other situations and will waive or modify the requirements or time limits set out in the Rules, as appropriate. The IRB may also act on its own initiative.

7.5 A member manager may identify an individual as a vulnerable person and may take appropriate measures to accommodate the person at an early stage and before a member has been assigned to conduct a proceeding. The assigned member is not bound by the IRB's early identification. The assigned member will consider this guideline and whether the identification and any procedural accommodations made will be maintained, amended or discontinued.

7.6 To the extent practicable, once a person has been declared a vulnerable person under this guideline, a member will be assigned at an early stage in the file and will be responsible for that file until the proceeding is concluded.

7.7 The IRB may hold conferences prior to and during hearings to assist in identifying vulnerable persons and to establish the nature of the procedural accommodations required.

8. Expert evidence

8.1 A medical, psychiatric, psychological, or other expert report regarding the vulnerable person is an important piece of evidence that must be considered. Expert evidence can be of great assistance to the IRB in applying this guideline if it addresses the person's particular difficulty in coping with the hearing process, including the person's ability to give coherent testimony.

8.2 The IRB may suggest that an expert report be submitted but will not order or pay for it.

8.3 Generally, experts' reports should contain the following information:

1. the particular qualifications and experience of the professional that demonstrate an expertise that pertains to the person's particular condition;
2. the questions that were posed to the expert by the person who requested the expert report;
3. the factual foundation underlying the expert's opinion;
4. the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results;
5. whether the person is receiving treatment and, if so, the nature of the treatment and whether the treatment is controlling the condition;
6. whether the assessing expert was also treating the person at the time of producing the report; and
7. the expert's opinion about the person's condition and ability to participate in the hearing process, including any suggested procedural accommodations and why particular procedural accommodations are recommended.

8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case.

8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability.

8.6 The absence of expert evidence does not necessarily lead to a negative inference about whether the person is in fact vulnerable. The IRB will consider whether it was reasonably possible to obtain such evidence.

9. Scheduling

9.1 The IRB has a duty to determine all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.^{Note 7} Moreover, the uncertainty and anxiety caused by delay can be particularly detrimental to some vulnerable persons. In such cases, those persons may be given scheduling priority. Where giving scheduling priority would not facilitate the objectives of this guideline, other procedural accommodations may be provided as appropriate.

10. Questioning the vulnerable person

10.1 The IRB ensures that all those who appear at its hearings or other proceedings are questioned with sensitivity and respect. This obligation is all the more important in the case of vulnerable persons. In probing the information provided by the person, the IRB will attempt to avoid traumatizing or re-traumatizing the vulnerable person.^{Note 8}

11. Decisions and reasons

11.1 The uncertainty and anxiety generated by waiting for a decision and reasons for decision may be particularly stressful for vulnerable persons. Generally, decisions and reasons for decisions involving vulnerable persons will be delivered as soon as possible, and orally wherever appropriate. In individual cases, members may determine that written reasons are preferable.

12. Designated representative

12.1 In some cases, vulnerable persons may be under 18 years of age or unable, in the opinion of the IRB, to appreciate the nature of the proceedings. In such cases, the IRB shall designate a person to represent the person, as required by subsection 167(2) of IRPA.^{Note 9}

13. Self-represented persons

13.1 Self-represented persons are entitled to the same procedural safeguards as those who are represented, and the IRB will endeavour to ensure that the process outlined in this guideline is both accessible and understandable to these persons. The IRB will take extra care to ensure that self-represented vulnerable persons can participate as meaningfully as possible in their own hearings.

14. Women fearing gender-related persecution

14.1 The RPD and the RAD will consider the IRB guideline entitled Women Refugee Claimants Fearing Gender-Related Persecution in all cases involving women refugee cases based on gender.^{Note 10} This guideline comprehensively sets out the relevant considerations and explicitly recognizes the special problems faced by women who fear gender-related persecution.

15. Minors

15.1 In all cases involving minors, the RPD will continue to consider and apply the IRB guideline entitled Child Refugee Claimants - Procedural and Evidentiary Issues.^{Note 11}

15.2 In all cases involving minors appearing before the ID, the IAD or the RAD, these respective divisions will consider and apply the IRB guideline entitled Child Refugee Claimants - Procedural and Evidentiary Issues, making necessary modifications in respect of any provisions in this guideline that are not relevant to the ID, the IAD or the RAD.

16. LGBTI individuals

16.1 Lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals may have suffered negative experiences due to homophobia in their respective countries of origin, most specifically discrimination, bullying, ostracism, violence, sexual assault, and so on. The IRB has been sensitive and will continue to be sensitive and alert to the impact that these particular circumstances may have on some LGBTI individuals; it will also ensure that when identified as vulnerable, those individuals, like other persons identified as vulnerable, are not disadvantaged in presenting their cases to the IRB.

17. References

• Immigration and Refugee Protection Act, S.C. 2001, c. 27.
• Refugee Protection Division Rules, SOR/ 2012-0256.
• Refugee Appeal Division Rules, SOR/2012-0257.
• Immigration Appeal Division Rules, SOR/2002-230.
• Immigration Division Rules, SOR/2002-229.
• Immigration and Refugee Board of Canada. Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues. 1996.
• Immigration and Refugee Board of Canada. Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution. 1996. Update.
• Immigration and Refugee Board of Canada. Guideline 7 - Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division. 2003. Amended 15 December 2012.

18. Inquiries

For more information, please contact:

Director, Policy and Procedures Directorate
Immigration and Refugee Board of Canada
Minto Place - Canada Building
344 Slater Street, 14^th Floor
Ottawa, Ontario K1A 0K1
Fax: 613-952-9083